Gibson v. World Savings and Loan Assn

In Gibson v. World Savings & Loan Assn. (2002) 103 Cal. App. 4th 1291, the plaintiffs brought a class action suit against World Savings and Loan Association alleging World financially benefited from purchasing expensive replacement hazard insurance for borrowers who failed to maintain hazard insurance on their real property and charging the borrowers the full price of the replacement insurance, instead of simply reinstating the borrowers' insurance policies. The plaintiffs alleged this practice violated the terms of the borrowers' deeds of trust, which authorized World to advance funds on behalf of the borrowers only to the extent necessary to protect World's rights. The plaintiffs sought restitution under the UCL. ( Gibson, at p. 1294.) The court reversed a trial court finding of federal preemption. The court of appeal noted the plaintiffs' claims were "predicated on the duties of a contracting party to comply with its contractual obligations and to act reasonably to mitigate its damages in the event of a breach by the other party, on the duty not to misrepresent material facts, and on the duty to refrain from unfair or deceptive business practices. Those predicate duties are not requirements or prohibitions of the sort that section 560.2 preempts. That section preempts (1) state laws that (2) either purport to regulate federal savings associations or otherwise materially affect their credit activities. The predicate duties underlying the plaintiffs' claims do not meet that description." ( Gibson, supra, at pp. 1301-1302.) "A stated intent to preempt requirements or prohibitions imposed by state law does not reasonably extend to those voluntarily assumed in a contract." ( Id. at p. 1302.) In Gibson v. World Savings and Loan Assn. (2002) the Fourth District Court of Appeal was presented with the issue whether 12 Code of Federal Regulations section 560.2 (Regulation 560.2) preempted claims alleged under California's unfair competition law based upon allegations that the savings and loan association (1) charged borrowers for certain amounts in violation of the terms of the borrowers' deeds of trust and (2) failed to disclose that it was charging more for certain items than the association paid for those items. The Court held there was no preemption. The court in Gibson explained that under the relevant precedents, " we '"must fairly but-in light of the strong presumption against pre-emption-narrowly construe the precise language of the preemptive statute or regulation and we must look to each of the plaintiffs' state law claims to determine whether it is in fact pre-empted." ' As to each state law claim, the central inquiry is whether the legal duty that is the predicate of the claims constitutes a requirement or prohibition of the sort that federal law expressly preempts." ( Gibson, supra, 103 Cal.App.4th at p. 1301.) Applying this framework to the claims before it, the Gibson court noted that those claims "are predicated on the duties of a contracting party to comply with its contractual obligations ... , on the duty not to misrepresent material facts, and on the duty to refrain from unfair or deceptive business practices." (Ibid.) The court concluded that "those predicate duties are not requirements or prohibitions of the sort that Regulation 560.2 preempts. That regulation preempts (1) state laws that (2) either purport to regulate federal savings associations or otherwise materially affect their credit activities. The predicate duties underlying the plaintiffs' claims do not meet that description. ... ... ... Instead, the duties on which the plaintiffs' claims are predicated govern, not simply the lending business, but anyone engaged in any business and anyone contracting with anyone else. On their face, they do not purport to regulate federal savings associations and are not specifically directed toward them. Nor is there any evidence that they were designed to regulate federal savings associations more than any other type of business, or that in practice they have a disproportionate impact on lending institutions. Any effect they have on the lending activities of a federal savings association is incidental rather than material." ( Id. at p. 1302.) Therefore, the court determined that the plaintiffs' unfair competition claims, which were based upon alleged violations of contractual terms and misrepresentations, were not preempted under the relevant case law. The Gibson court also found that the plaintiffs' claims were not preempted even under the three-step formula suggested by the Office of Thrift Supervision (OTS) to determine whether a state law is preempted. That formula was described by the OTS at the time it promulgated Regulation 560.2 as follows: " 'The first step will be to determine whether the type of law in question is listed in paragraph (b) of Regulation 560.2. If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption.' " ( Gibson, supra, 103 Cal.App.4th at pp. 1302-1303.) Applying this formula to unfair competition claims based upon breach of contractual terms and misrepresentations, the Gibson court found that (1) the types of laws that the plaintiffs sought to enforce were not listed in paragraph (b); (2) "the laws do affect lending businesses, just as they affect any other business that enters into contracts or makes representations during the course of its operations"; and (3) the presumption of preemption is rebutted because the laws "are general contract and commercial laws that only incidentally affect lending operations." ( Id. at p. 1303.) The Court held that the Office of Thrift Supervision (OTS) did not preempt an action under our unfair competition statute (Bus. & Prof. Code, 17200 et seq.), "a stated intent to preempt requirements or prohibitions imposed by state law does not reasonably extend to those voluntarily assumed by contract." In Gibson, the statutes on their face do "not purport to regulate federal savings associations and are not specifically directed toward them. Nor is there any evidence that they were designed to regulate federal savings associations more than any other type of business, or that in practice they have a disproportionate impact on lending institutions. Any effect they have on the lending activities of a federal savings association is incidental rather than material." ( Gibson v. World Savings & Loan Assn., supra, 103 Cal.App.4th at p. 1302.)